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The Brief: Oct. 11, 2012

Oral arguments at the Supreme Court on Wednesday spelled trouble for the University of Texas at Austin's affirmative action policy.

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The Big Conversation:

Oral arguments at the Supreme Court on Wednesday spelled trouble for the University of Texas at Austin's affirmative action policy.

After a long and often heated proceeding in which lawyers for the University of Texas at Austin struggled to define a "critical mass" of minority students, the court's four conservative justices appeared ready to limit the school's use of race in its admissions policy.

But whether the court will prevent universities from considering race altogether remains unclear.

Doing so would likely require the justices to overturn a 2003 case, Grutter v. Bollinger, in which the court ruled that universities could use race as one factor in their admissions criteria to attain a "critical mass" of diversity but could not establish racial quotas.

In the courtroom on Wednesday, the conservative justices asked UT's lawyers at what point the university would no longer need to use race in its admissions, but didn't receive a clear answer. "You won’t tell me what the critical mass is," said Chief Justice John Roberts. "How am I supposed to do the job that our precedents say I should do?"

The conservative judges, as well as Justice Anthony Kennedy, the court's swing vote, also appeared to bridle at the university's use of race in admitting students who are not accepted under the state's top 10 percent law. Using race, UT's lawyers argued, allows the school to seek "diversity within diversity," including, for example, minorities from wealthy families. 

"So what you're saying is that what counts is race above all else," Kennedy said. "You want underprivileged of a certain race and privileged of a certain race."

Kennedy, who has opposed affirmative action programs but less fervently than the other conservative justices, may determine whether the Grutter ruling is overruled or merely limited.

Find full, in-depth coverage of Wednesday's arguments at SCOTUSblogThe court will announce its decision next spring.


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"I know that time flies, but only nine of those years have passed." — Supreme Court Justice Stephen Breyer on 2003's Grutter vs. Bollinger ruling, which said racial preferences wouldn't be needed in 25 years


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